HomeMy WebLinkAbout20221121.tiff17�'�693�
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance Agreement for:
Newell Plaza, LLC —Zt'AG21-0023
DEPARTMENT: Planring Services DATE: April 5, 2022
PERSON REQUESTING: Jazmyn Trujillo -Martinez
Brief description of the problem/issue:
The Department of Planning Services received a request from the applicant, Newell Plaza, LLC, requesting that
the Board of County Commissioners consider approving the Road Maintenance Agreement for (ZPAG21-0023).
No collateral is required with this agreement.
Weld County Planning Services, Public Works, and the County Attorney's Office have reviewed the above
mentioned signed original document and observed the following:
• All Public Works related items, of the "Road Maintenance Agreement According To Policy", are found
to be acceptable.
• This Agreement complies with the terms of the ZPAG Permit Conditional Approval, as signed by the
Director of Planning Services.
What options exist for the Board? (include consequences, impacts, costs, etc. of options):
1. Have this BOCC Hearing item be placed on the next available agenda as part of the Consent Agenda.
2. Have this BOCC Hearing item be placed on the next available agenda as part of the Regular Agenda.
Recommendation:
Option 1. The Departments of Planning Services, Public Works, and the County Attorney's Office are
recommending approval of the Road Maintenance Agreement According To Policy for ZPAG21-0023, and that
this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Perry L. Buck
Mike Freeman, Pro -Tern
Scott K. James, Chair
Steve Moreno
Lori Saine
Approve
Recommendation
Schedule
Work Session Other/Comments:
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2022 -1121
ROAD MAIN PENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLA 1'ERAL FOR IMPROVEMENTS
Newell Plaza, LLC — ZPAG21-0023
THIS AGREEMENT is made this /(11 day of / ' , 202A, by and between Newell
Plaza, LLC, a limited liability company organized under the 1. / s of the State of Colorado, whose address
is 1019 39th Avenue, Greeley, Colorado 80634, hereinafter referred to as "Property Owner," authorized
to do business in the State of Colorado, and the County of Weld, a body corporate and politic of the State
of Colorado, by and through its Board of County Commissioners, whose address is 1150 "O" Street,
Greeley, Colorado 80631 hereinafter referred to as "County."
WITNESSETH:
WHEREAS, Property Owner is the owner of the following described property in the County of
Weld, Colorado:
Lot C of Recorded Exemption, RECX18-0152; being a
part of the SW1/4 of Section 19, Township 6 North,
Range 65 West of the 6th P.M., Weld County, Colorado
hereinafter referred to as "the Property," and
WHEREAS, Property Owner has received the Director of Planning Services conditional approval
of ZPAG21-0023, and
WHEREAS, Property Owner acknowledges that the fmal approval of ZPAG21-0023 is
conditional upon Property Owner's understanding of road maintenance described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and
covenants contained herein, the parties hereto promise, covenant and agree as follows:
PART I: SITE SPECIFIC PROVISIONS
A. Haul Routes: The Property Owner shall be fmancially responsible for its proportional share of
the County's costs associated with maintaining and/or improving designated haul/travel routes.
NE 1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property:
1) East and west along County Road 66 (AA Street) between County Road 37 and Highway 85.
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2.0 Haul trucks shall enter and exit the site at the approved access(es) on County Road 66 (AA
gr Street) and remain on paved roadways for further dispersal. Any County roads used by traffic associated
"� with ZPAG21-0023 may become part of the established haul/travel routes.
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r y� 3.0 Weight Limits. No travel vehicles may exceed CDOT required specifications for pounds per axle
and axle configurations unless overweight permits have been applied for and granted.
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I . ° A21 4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the
as - abovementioned haul/travel route for a limited period (six months or less), Weld County Planning
da i Services may authorize, in writing, the deviation. In that circumstance, haul/travel vehicles will utilize
paved county roads whenever possible. A deviation from the established haul/travel route lasting more
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Newell Plaza, LLC — ZPAG21-0023 — RMA22-0003
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than six (6) months or requests for one (1) or more deviations within a 12 -month period shall authorize
the County to change the haul/travel routes designated herein and provide notice to the Property Owner.
5.0 Haul Route Signage. Property Owner shall install travel route signs, if applicable, as per Manual
of Uniform Traffic Control Devices standards, at all exit points of the Property which can be clearly seen
by drivers leaving the facility and which clearly depict County approved travel routes.
6.0 No Deviation from Permitted Haul Routes. Except as authorized by the Board pursuant to this
Agreement, no use of any roads other than those specifically authorized for use in this Agreement is
permitted without the prior written amendment of this Agreement.
B. Maintenance Requirements:
1.0 Off -site recurring maintenance, if applicable, as required:
2.0 Repair. Property Owner shall be fmancially responsible for its proportional share of excavation,
patching, and pavement repair on designated haul/travel routes. The amount and extent of repair and
paving measures will be determined by site -specific conditions at the time, as determined exclusively by
County personnel.
3.0 Need for Immediate Repairs: In the event of damage to a designated haul/travel route by project
traffic that causes an immediate threat to public health and safety or renders the road impassible
("Significant Damage"), County shall, after inspection, notify Property Owner of such Significant
Damage. Property Owner shall identify the repair required and shall consult with County on the extent,
type, timing, materials and quality of repair (i.e. temporary versus permanent) within twenty-four (24)
hours after receipt of such notice and shall commence such repair within forty-eight (48) hours after
receipt of such notice. If Property Owner identifies Significant Damage prior to receiving notice thereof
from County, Property Owner may commence repair of such Significant Damage and shall concurrently
notify County of the extent, type, timing, materials and quality of repair (i.e. temporary versus
permanent).
4.0 Repair of Road: On or before December 31 of the calendar year in which County staff has
determined through site analysis and/or pavement testing that a particular haul/travel route road portion
will require paving measures in order to protect the public health, safety, and welfare, and the County has
budgeted sufficient funds for the following calendar year to pay its share of the Off -Site
Improvement/Repair Costs, County shall notify Property Owner in writing that the Off -Site
2 Improvements/Repairs shall be undertaken.
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4.1 In County's sole discretion, County may undertake the repairs and/or improvements.
Property Owner's payment for its Proportionate Share of the road repairs/improvements will be
calculated as determined in this Agreement. Property Owner will be invoiced accordingly for
those proportional share costs.
5.0 Calculation of Property Owner's Proportional Share of Costs. The County shall notify Property
Owner of County's preliminary determination and assessment of Property Owner's proportional share of
costs of maintenance, repair, or improvements to Property Owner's designated haul/travel routes. Prior to
County's fmal determination and assessment, County shall provide Property Owner with a reasonable
opportunity to review, comment upon and supplement County's data, collection methodology, and
determinations. The County shall review and consider Property Owner's input prior to making a fmal
determination and assessment. The County shall have sole responsibility for determination of Property
Newell Plaza, LLC — ZPAG21-0023 — RMA22-0003
Page 2 of 7
Owner's proportional share of costs. Property Owner agrees to pay such proportional share of costs within
30 days of receiving an invoice from County.
6.0 Annual Road Inspection. County may conduct a road inspection annually with the cooperation of
Property Owner and all other Property Owners and/or Lessees who are required by County to participate
in road improvement/maintenance agreements for the haul routes designated in this Agreement. As a
result of the annual inspection, County, in its sole discretion, shall determine actual conditions and shall
further determine what road repair/improvement/maintenance work is to be performed during that
construction season. Notification to the Property Owner of the required roadway repairs will be given as
soon as the data become available.
7.0 Notification. The County shall notify Property Owner of County's preliminary determination and
assessment of Property Owner's proportionate share of costs of maintenance, repair, or improvements to
Property Owner's designated haul/travel routes. Prior to County's fmal determination and assessment,
County shall provide Property Owner with a reasonable opportunity to review, comment upon and
supplement County's data, collection methodology, and determinations. The County shall review and
consider Property Owner's input prior to making a fmal determination and assessment.
PART II: GENERAL PROVISIONS
A. Permits: Property Owner is required to apply for and receive all permits required by the County
or any other applicable local, State, or federal permit, including but not limited to:
1.0 Access Permits. Property Owner shall not use any access onto any County road unless and until
an access permit has been issued by the Department of Planning Services. Planning Services may
condition the issuance of an updated access permit on the amendment of this Agreement if the updated
access permit authorizes the use of an additional access point, or if there is a change in use of the current
access point, as permitted by Article XIV of Chapter 8 of the Weld County Code.
2.0 Right -of -Way (ROW) Permits. Per Article XIII of Chapter 8 of the Weld County Code, any work
occurring within County ROW requires a ROW permit issued by the Department of Public Works. No
work shall occur without said ROW permit.
3.0 Transport Permits. Per Article XV of Chapter 8 of the Weld County Code, a Weld County
Transport Permit is required for Extra -legal vehicles using Weld County roadways to ensure the operation
and movement of Extra -legal Vehicles and Loads occurs in a safe and efficient manner.
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2 B. Enforcement and Remedies:
1.0 Violation of Terms of Agreement. If in County's opinion, Property Owner has violated any of the
terms of this Agreement, County shall notify Property Owner of its belief that the Agreement has been
violated and shall state with specificity the facts and circumstances which County believes constitute the
a�m= violation. Property Owner shall have fifteen (15) days within which to either cure the violation or
"!3 demonstrate compliance. If, after fifteen (15) days have elapsed, County believes in good faith that the
violation is continuing, County may consider Property Owner to be in breach of this Agreement.
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r) o 2.0 Remedies for Breach by Property Owner. In the event that County determines that Property
tefi•Owner has violated the terms of this Agreement, and has failed to correct said violation, County may
wa "" 25e exercise any or all of the following remedies, or any other remedy available in law or equity.
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Newell Plaza, LLC — ZPAG21-0023 — RMA22-0003
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2.1 Withholding Permits. County may "lock" any or all lots within the Property, which
precludes the continued issuance of building permits, zoning permits, septic permits, or any other
permit issued by any department of the County.
2.2 Court Action. County may seek relief in law or equity by filing an action in the Weld
District Court or Federal District Court for the District of Colorado, except that no such civil
action or order shall be necessary to access collateral for the purpose of completing improvements
as described above.
2.3 Revocation of ZPAG Permit. Property Owner acknowledges that failure to comply with
the terms of this Agreement constitutes cause to revoke the ZPAG, and County may exercise this
option in its sole discretion by proceeding with revocation under the then current provisions of
the Weld County Code.
3.0
events:
Termination of Agreement. This Agreement shall terminate upon the earliest of the following
3.1 Failure to Commence. County may terminate this Agreement upon or after revocation of
the underlying land use approval under Weld County Code Section 23-2-290. However, County
may still exercise all necessary activities under this Agreement that the County determines
necessary to protect the health, safety, and welfare of the residents of Weld County.
3.2 Cessation of all Permit Related Activities. Termination of this Agreement shall occur
upon Property Owner's complete cessation of all activities permitted by the ZPAG including any
clean up or restoration required. A partial cessation of activities shall not constitute a Termination
of this Agreement, nor shall County's issuance of a partial release/vacation constitute a
Termination. Unless informed in writing by the Property Owner of cessation of activities, and
verified by the County, cessation shall only be presumed if the County determines that the ZPAG
has been inactive for three (3) years. Property Owner shall not be entitled to a release of Project
or Warranty Collateral unless and until the improvements required by this Agreement are
completed.
3.3 Execution of Replacement Agreement. This Agreement shall terminate following
County's execution of a new Improvements Agreement with a new property owner or operator
who has purchased the Property or has assumed the operation of the business permitted by the
ZPAG and intends to make use of the rights and privileges available to it through the then
existing ZPAG.
3.4 Revocation of ZPAG. This Agreement shall terminate following County's revocation of
Property Owner's ZPAG, except that the Property Owner shall only be released from this
Agreement after the successful completion of all improvements required under this Agreement,
which may be completed by County after accessing Property Owner's collateral if Property
Owner fails to complete such improvements.
C. General Provisions:
1.0 Successors and Assigns.
1.1 Property Owner may not delegate, transfer, or assign this Agreement in whole or in part,
without the prior express written consent of County and the written agreement of the party to
whom the obligations under this Agreement are assigned. Consent to a delegation or an
Newell Plaza, LLC — ZPAG21-0023 — RMA22-0003
Page 4 of 7
assignment will not be unreasonably withheld by County. In such case, Property Owner's release
of its obligations shall be accomplished by County's execution of a new Improvements
Agreement with the successor owner of the property.
1.2 County's rights and obligations under this Agreement shall automatically be delegated,
transferred, or assigned to any municipality which, by and through annexation proceedings, has
assumed jurisdiction and maintenance responsibility over all roads affected by this Agreement.
2.0 Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or
unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced
without such provision, to the extent that this Agreement is then capable of execution within the original
intent of the parties.
3.0 Governmental Immunity. No term or condition of this contract shall be construed or interpreted
as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions,
of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter
amended.
4.0 No Third -Party Beneficiary. It is expressly understood and agreed that the enforcement of the
terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be
strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or
right of action whatsoever by any other person not included in this Agreement. It is the express intention
of the undersigned parties that any entity other than the undersigned parties receiving services or benefits
under this Agreement shall be an incidental beneficiary only.
5.0 Entire Agreement/Modifications: This Agreement including the Exhibits attached hereto and
incorporated herein, contains the entire agreement between the parties with respect to the subject matter
contained in this Agreement. This instrument supersedes all prior negotiations, representations, and
understandings or agreements with respect to the subject matter contained in this Agreement. This
Agreement may be changed or supplemented only by a written instrument signed by both parties.
6.0 Board of County Commissioners of Weld County Approval. This Agreement shall not be valid
until it has been approved by the Board of County Commissioners of Weld County, Colorado or its
designee.
7.0 Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant thereto,
shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision
included or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall
be null and void. In the event of a legal dispute between the parties, the parties agree that the Weld
County District Court or Federal District Court for the District of Colorado shall have exclusive
jurisdiction to resolve said dispute.
8.0 Attorneys' Fees/Legal Costs. In the event of a dispute between County and Property Owner,
concerning this Agreement, the parties agree that each party shall be responsible for the payment of
attorney fees and/or legal costs incurred by or on its own behalf.
9.0 Release of Liability. Property Owner shall indemnify and hold harmless the County from any and
all liability loss and damage County may suffer as a result of all suits, actions, or claims of every nature
and description caused by, arising from, or on account of the design and construction of improvements,
and pay any and all judgments rendered against the County on account of any such suit, action or claim,
and notwithstanding Section 7.0 above, together with all reasonable expenses and attorney fees incurred
Newell P1a7a, LLC — ZPAG21-0023 — RMA22-0003
Page 5 of 7
by County in defending such suit, action or claim whether the liability, loss or damage is caused by, or
arises out of the negligence of the County or its officers, agents, employees, or otherwise except for the
liability, loss, or damage arising from the intentional torts or the gross negligence of the County or its
employees while acting within the scope of their employment. All contractors and other employees
engaged in construction of the improvements shall maintain adequate worker's compensation insurance
and public liability insurance coverage and shall operate in strict accordance with the laws and regulations
of the State of Colorado governing occupational safety and health.
10.0 Binding Arbitration Prohibited. Weld County does not agree to binding arbitration by any extra-
judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by
reference shall be null and void.
11.0 Authority to Sign. Each person signing this Agreement represents and warrants that he or she is
duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and
warrants to the other that the execution and delivery of the Agreement and the performance of such
party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal
agreement binding on such party and enforceable in accordance with its terms. If requested by the
County, Property Owner shall provide the County with proof of Property Owner's authority to enter into
this Agreement within five (5) days of receiving such request.
12.0 Acknowledgment. County and Property Owner acknowledge that each has read this Agreement,
understands it and agrees to be bound by its terms. Both parties further agree that this Agreement, with
the attached or incorporated Exhibits, is the complete and exclusive statement of agreement between the
parties and supersedes all proposals or prior agreements, oral or written, and any other communications
between the parties relating to the subject matter of this Agreement.
13.0 Notwithstanding any other provision contained in this Agreement, for any conflict or potential
conflict between any term in this Agreement and the Resolution of the Board of County Commissioners
approving the underlying land use permit, the provisions of the Board's Resolution shall control. In the
event of a discrepancy between this agreement and the Weld County Code in effect at the time of the
agreement, the terms of the Weld County Code shall control.
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Newell Plaza, LLC — ZPAG21-0023 — RMA22-0003
Page 6 of 7
PROPERTY 0
By: /
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Name: n
Title: vA)r-
R: Newell Playa, LLC
2 L'
E
STA It OF COLORADO
County of Weld
Date
SS.
The foregoing instrument was acknowledged before me this yfh day of 4o, r °/ ,
202,2 by �Ia 9%ew .6)ewew
WITT
ESS m3sban mut C LALW seal.
Notary Public
State of Colorado
Notary ID # 19944017399
My Commission Expires 10-24-2022
WELD COUNTY:
ATTEST: ' ok BOARD OF COUNTY COMMISSIONERS
Weld Co '+ Clerk to the Bo. d WELD COUNOLORADO
BY:
cott K. James, Chair APR 1 8 2022,
Newell Plaza, LLC — ZPAG21-0023 — RMA22-0003
Page 7 of 7
20G201
Contract Form
New Contract Request
Entity Information
Entity Name*
NEWELL PLAZA LLC
Entity ID*
'.310045.373
Contract Marne*
ROAD MAINTENANCE AGREEMENT NEWELL PLAZA, LLC
ZPAG21-0023
Contract Status
CTB REVIEW
Contract ID
5734
Contract Lead*
JTRUJILLOMARTINEZ
Contract Lead Email
jtrujillomartinez@weldgov.c
am
Parent Contract ID
Requires Board Approval
YES
Department Project #
Contract Description*
ROAD MAINTENANCE AGREEMENT NEWELL PLAZA, LLC ZPAG21-002.3 NO COLLATERAL REQUIRED
Contract Description 2
Contract Type
AGREEMENT
Amount *
40.00
Renewable*
NO
Automatic Renewal
Department
PLANNING
Department Email
CM-Planningveldgay.com
Department Head Email
CM-Planning-
DeptHead@weldgov.com
County Attorney
GENERAL COUNTY
Al I ORNEY EMAIL
County Attorney Email
CM
COU NTYA I I ORN EYMELDG
OV.COM
Requested BOCC Agenda
Date ir
04/13 '2022
Due Date
04'0912022
Will a work session with BOCC be required?*
NO
Does Contract require Purchasing Dept to be included?
NO
If this is a renewal enter previous Contract ID
If this is of a M5A enter MSA Contract ID
Note the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in
Onaase
Contract Date,
Effective Date
Review Date*
04:13,+202 3
Renewal Date
Termination Notice Period
li
Expiration Date*
04/13;2024
Contact Information
Contact Info
Contact Name
Purchasin
Purchasing Approver
CONSENT
Approval Process
Department Head
TOM PARKO JR.
DH Approved Date
041111/2022
Final Approval
BOCC Approved
BOCC Signed Date
BOCC Agenda Date
04/1812022
Originator
JTRUJ ILLOMARTI NEZ
Contact Type Contact Email
Finance Approver
CONSENT
Contact Phone 1
Purchasing Approved Date
04 '11 e 2022
Finance Approved Date
04,E^11/2022
Tyler Ref #
AG 041822
Legal Counsel
CONSENT
Contact Phone 2
Legal Counsel Approved Date
04,'1 1 /2022
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